Jone Doe, et al v. Dutch Tours, et al

Lipcon, Margulies, Alsina & Winkleman, P.A

June 30, 2014

Jone Doe, et al v. Dutch Tours, et al

Plaintiffs’ Response in Opposition to Defendant, Dutch Tours Enterprises N.V.’S Motion for Recon

After winning a jurisdictional challenge, one of our experienced maritime attorneys defends the Court’s ruling in this response to the Defendant’s motion for reconsideration. This case involved a bus accident during a shore excursion resulting in a number of injuries to cruise ship passengers.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
IN ADMIRALTY
CASE NO. 13-20619-CIV-GOODMAN
[CONSENT CASE]

JOHN DOE, Individually and as Parent and Natural
Guardian of LITTLE DOE and LITTLE DOE II (minors), et al.,
Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES LTD.,
RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY, and
DUTCH TOURS ENTERPRISES N.V.,
Defendants. /

JOHN DOE, Individually and as Parent and Natural
Guardian of LITTLE DOE and LITTLE DOE II (minors), et al.,
Garnishors,

v.

ROYAL CARIBBEAN CRUISES LTD., CELEBRITY CRUISES INC.,
CARNIVAL CORPORATION and SILVERSEA CRUISES LTD. (INC.),
Garnishees. /

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT,
DUTCH TOURS ENTERPRISES N.V.’S MOTION FOR RECONSIDERATION,
OR IN THE ALTERNATIVE, MOTION TO CERTIFY APPEAL

The Plaintiffs, JOHN DOE, et al., by and through undersigned counsel, hereby file their response in opposition to Defendant, DUTCH TOURS ENTERPRISES N.V.’S (“Dutch Tours[’]”) motion seeking reconsideration of this Honorable Court’s Order Rejecting Request to Vacate Rule B Attachments [D.E. 133], or in the alternative, for an order certifying an appeal of such order. In furtherance thereof, Plaintiffs rely in good faith on the following memorandum:

I. Introduction

The procedural history of the instant matter is undoubtedly well known to this Honorable Court by now. From the outset of Plaintiffs’ Rule B attachments over Dutch Tours’ property, Dutch Tours has been arguing that the attachments should be vacated because this Court does not have admiralty jurisdiction over Plaintiffs’ Rule B claim. Specifically, that argument was raised in Dutch Tours’ Answer and Affirmative Defenses, wherein Dutch Tours also requested a post‐attachment hearing pursuant to Rule E(4)(F) of the Supplemental Rules. [D.E. 106].

In response to Dutch Tours’ request, this Honorable Court scheduled a hearing and ordered the Plaintiffs and Dutch Tours to submit pre-hearing memorandums. [D.E. 107]. The Plaintiffs and Dutch Tours therefore each submitted their memorandums, both of which included arguments as to whether or not this Court had admiralty jurisdiction over Plaintiffs’ Rule B claim. [D.E. 114, 115]. That was Dutch Tours’ first opportunity to present its argument and supporting authority.

Thereafter, on February 20, 2014, this Court held the hearing pursuant to Local Admiralty Rule B(5)(b). The hearing lasted approximately two hours, the vast majority of which was spent addressing Dutch Tours’ argument that this Court does not have admiralty jurisdiction over Plaintiffs’ Rule B claim. That was Dutch Tours’ second opportunity to present its argument and supporting authority.

After the hearing, the Court entered an order requiring that the Plaintiffs and Dutch Tours submit post-hearing memorandums concerning, inter alia, the issue of admiralty jurisdiction. [D.E. 118]. The Plaintiffs and Dutch Tours each submitted their memorandums. [D.E. 127, 128]. That was Dutch Tours’ third opportunity to present its argument and supporting authority.

On June 3, 2014, this Honorable Court entered its Order finding admiralty jurisdiction over Plaintiffs’ Rule B claim and rejecting Dutch Tours’ request to vacate the Rule B attachments. [D.E. 133]. Now, after months of litigating the same issue, Dutch Tours seeks reconsideration of the Court’s order, or in the alternative, for an order certifying an appeal.

As set forth in detail below, Dutch Tours’ motion should be denied in its entirety. First, Dutch Tours has not even alleged an appropriate basis for the Court to reconsider its ruling, nor could Dutch Tours make that allegation in good faith. In reality, Dutch Tours’ Motion for Reconsideration is merely an attempt at a fourth bite of the apple. Second, Dutch Tours’ Motion to Certify Appeal should also be denied because this Court’s Order does not meet the requirements for an interlocutory appeal.

II. Dutch Tours’ Motion for Reconsideration should be denied because it is merely Defendant’s attempt to rehash the same points and arguments that have already been addressed and considered three times by this Honorable Court.

The purpose of a motion for reconsideration is to “correct manifest errors of law or fact or to present newly discovered evidence.” Z.K. Marine Inc. v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla. 1992). “In particular, there are three major grounds which justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002) (citations omitted). The moving party has the burden to set forth facts or law of a “strongly convincing nature” to induce the court to reverse its prior decision. Id.

Furthermore, “[a] motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made.” Z.K. Marine, 808 F.Supp. at 1563; see also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (“A motion for reconsideration cannot be used to “relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.”). In fact, it is considered an “improper use” of the motion to reconsider “to ask the Court to rethink what the Court… already thought through—rightly or wrongly”. Z.K. Marine, 808 F.Supp. at 1563 (alternations in original) (citation omitted). Thus, reconsideration of a previous order is an “extraordinary remedy to be employed sparingly.” Burger King, 181 F. Supp. 2d at 1369. “For reasons of policy, courts and litigants cannot be repeatedly called upon to backtrack through the paths of litigation which are often laced with close questions. There is a badge of dependability necessary to advance the case to the next stage.” Id.

Herein, Dutch Tours does not even attempt to fall under any of the proper grounds to seek reconsideration of the Court’s order. It does not allege that there is new authority, new evidence, clear error or manifest injustice. Instead, it merely uses the same case law and arguments to rehash the same points addressed at the Rule B hearing and its pre- and post-hearing memorandums [D.E. 114, 128], and it improperly asks the Court to rethink what it already (and very thoroughly) thought through. The motion should therefore be denied on that ground alone.

In addition though, the motion should be denied because, as this Court already found, Dutch Tours is wrong. Plaintiffs’ Rule claim against Dutch Tours satisfies both the locality and connectivity necessary for admiralty jurisdiction, and the arguments Dutch Tours raises in its Motion for Reconsideration are both without merit and in direct conflict with the United States Supreme Court.

A.  Locality

This Honorable Court has already examined the test for admiralty jurisdiction set forth by the United States Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995) (a “party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with marine activity”). [D.E. 133, pp. 10-16].

As to the locality prong, Dutch Tours’ main point of contention is that “there is no causal relationship between the alleged negligence of the cruise line and the accident in question” [D.E. 134, p. 6] (emphasis added). Its argument, however, is without merit based on the Plaintiffs’ allegations (which are taken as true at this juncture).

Specifically, in their Amended Complaint, the Plaintiffs allege that the subject incident was caused, inter alia, by the following acts and/or omissions of the cruise line, Royal Caribbean:
….
a. Failure to adequately inspect and/or monitor the subject shore excursion so as to ensure that the transportation used in the subject shore excursion was reasonably safe for Plaintiffs and cruise passengers; and/or

b. Failure to adequately inspect and/or monitor the bus for the subject shore excursion so as to ensure that it was reasonably safe for cruise ship passengers; and/or

c. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or

d. Failure to adequately inspect and/or monitor the policies and procedures of the Excursion Entities to ensure that the transportation used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or

e. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was regularly and adequately inspected and/or maintained; and/or

f. Failure to adequately inspect and/or monitor the policies and procedures of the Excursion Entities to ensure that the transportation used for the subject shore excursion was regularly and adequately inspected and/or maintained; and/or

g. Failure to provide reasonably safe transportation for Plaintiffs and other cruise passengers participating in the subject shore excursion; and/or

h. Failure to require the Excursion Entities to provide reasonably safe transportation for cruise ship passengers; and/or

i. Failure to provide a competent driver for the transportation used for the subject shore excursion; and/or

j. Failure to require the Excursion Entities to provide a competent driver for the transportation used for the subject shore excursion;

k. Failure to adequately warn Plaintiffs of the dangers of participating in the subject shore excursion; and/or

l. Failure to adequately warn Plaintiffs of the dangers involved in driving a bus through such a steep and narrow road; and/or

m. Failure to ensure that the route taken to the shore excursion was reasonably safe considering the transportation used; and/or

n. Failure to advise the Plaintiffs and other cruise ship passengers that RCCL does not inspect and/or maintain the transportation used for the subject shore excursion; and/or

o. Failure to advise the Plaintiffs and other cruise ship passengers that RCCL does not verify that the transportation used for the subject shore excursion is reasonably safe, inspected, and/or maintained; and/or

p. Failure to ensure that properly trained and supervised persons operated the subject shore excursion; and/or

q. Having a shore excursion that was not competently operated; and/or
.…

[D.E. 99, 35(a)-(y)]. The Plaintiffs further allege that all of the above acts and/or omissions by Royal Caribbean “caused the Plaintiffs to suffer severe and permanent injuries” due to the subject accident. [D.E. 99, 35] (emphasis added).

Therefore, even a cursory review of the Amended Complaint directly refutes Dutch Tours’ argument, as it clearly shows that the Plaintiffs allege the accident was caused due to the cruise line’s (i.e., Royal Caribbean’s) failure to inspect and/or monitor 1) the subject shore excursion, 2) the transportation used for the excursion, 3) the bus driver and/or 4) the route taken for the excursion (among others).[1]

In addition to the allegations directed at Royal Caribbean, Plaintiffs’ allegations against Dutch Tours also support a proximate causation between the subject accident and Plaintiffs’ resultant injuries and the vessel. First, Plaintiffs purchased their tickets for the subject excursion aboard the vessel. [D.E. 99, 19-21]. Second, Plaintiffs received the promotional material for shore excursions (including the subject excursion) aboard the subject vessel. [D.E. 99, 18, 20]. A substantial basis for Plaintiffs’ negligence claim against Dutch Tours involves the manner in which the shore excursion was marketed and the lack of warnings concerning the route taken and the transportation used for the excursion [D.E. 99, ¶43(n)-(o)] – issues that would have been addressed with the promotional material that the Plaintiffs received aboard the vessel.

Furthermore, it is immaterial that Balaschak was a case against the cruise line and not the shore excursion operator[2] because the allegations concerning the inadequacies of the promotional material are identical and apply equally to all parties involved with providing the excursion to passengers.[3] It is also immaterial whether or not Dutch Tours was an independent contractor. Plaintiffs ultimately maintain, inter alia, that it was negligent for the Defendants (including Dutch Tours) to not warn the Plaintiffs that a third-party (i.e., Dutch Tours) was transporting them and that the route and/or bus being used by such third-party was/were unsafe. The promotional material and warnings could have (and should have) been provided aboard the vessel when the Plaintiffs purchased the tickets for the excursion.

As such, Defendants’ negligent conduct alleged by the Plaintiffs (allegations which are to be taken as true at this junction) takes place aboard the vessel, thereby satisfying the locality prong of the admiralty test. And, most importantly, there is nothing that Dutch Tours raises in its motion which merits reconsideration of this Honorable Court’s Order.

B. Connection with Maritime Activity

As to the second prong of the admiralty test (the connection prong), the only argument Dutch Tours makes for reconsideration is that Plaintiffs’ case is “too attenuated to bear a relationship to a maritime activity.” [D.E. 134, p. 7]. Once again, this argument is insufficient for a reconsideration of the Court’s ruling. The argument has also consistently been rejected by multiple Courts and cases holding that shore excursions are part of the cruise experience.

The determination of whether a case has a connection to a maritime activity raises two issues:
A court, first, must “assess the general features of the type of incident involved,” to determine whether the incident has “a potentially disruptive impact on maritime commerce”. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.”
Grubart, 513 U.S. at 534 (internal citations omitted) (emphasis added).

The first issue of the connection test is met here. Obviously “the cruise line industry is maritime commerce.” Doe, 394 F.3d at 900. As the Eleventh Circuit noted in Doe, “[i]t is easy to imagine that if rape or other forms of sexual battery became a concern of passengers, cruise-ship business would necessarily suffer.” Id. By that same token, “when a passenger is injured on a shore excursion, it has the potential to impact the number of excursions purchased by passengers, thereby affecting maritime commerce.” Belik, 2012 WL 4511236 at *5; see also Balaschak v. Royal Caribbean Cruises, Ltd., 09-21196-CIV, 2009 WL 8659594, *4 (S.D. Fla. Sept. 14, 2009) (“The cruise line industry is maritime commerce…. Shore excursions attract passengers to participate in cruises and are an integral part of the cruise-line industry.”).

The impact could be substantial considering that “shore excursions are a great source of profit” and “annual shore excursion program[s] could exceed one hundred million dollars.” Meyer v. Carnival Corp., 938 F. Supp. 2d 1251, 1259 (S.D. Fla. 2013) (emphasis added). Thus, if passengers were to discontinue buying excursions due to concerns about their safety, the cruise industry would be substantially affected. Balaschakem>, 2009 WL 8659594, at * 4; Smith, 584 F.Supp.2d at 1348 (similar); Bird, 428 F.Supp.2d at 1279 (similar)).

As to the second issue, the general character of the activity giving rise to the incident also shows a substantial relationship to traditional maritime activity. Scheduled ports-of-call and onshore excursions are traditional maritime activities (Doe, 394 F.3d at 902), and Plaintiffs were participating in the type of activity that cruise passengers expect to be offered by a commercial cruise line. See Skeen v. Carnival Corp., 08-22618-CIV, 2009 WL 1117432 (S.D. Fla. Apr. 24, 2009). In addition, as stated above, much of the negligent conduct alleged by Plaintiffs takes place on the vessel.

Furthermore, contrary to Dutch Tours’ argument, this case is very different from a local taxi cab picking up cruise passengers at the port for transportation because that is not what Dutch Tours was doing at the time of the subject incident. Rather, Dutch Tours entered into an agreement with a shore excursion company (RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY (“RDVT”)) for the sole purpose of picking up cruise ship passengers and taking them to RDVT’s shore excursion on a scheduled basis. Transportation to and from shore excursions is part of the cruising experience. See Balaschak, supra. In addition to that, however, Dutch Tours was under contract directly with Royal Caribbean to provide shore excursions to its passengers. Therefore, while a local tax cab may or may not pick up passengers who may or may not be going to an excursion, Dutch Tours contracted with a shore excursion operator solely for that purpose, knowing full well the standards it was to uphold because it had contracts with the cruise line itself for other excursions.

Dutch Tours wants the Court to simply consider this incident as generally as possible – a bus crash on the way to a zip-lining event, which has no relationship to a maritime activity. [D.E. 134, pp. 8-9]. In support of that proposition, Dutch Tours asks the Court to use the “four factor test” set forth in Kelly v. Smith, 485 F. 2d 520 (5th Cir. 1973). Dutch Tours’ reliance on that case, however, is wholly misplaced because Kelly is no longer good law. In fact, the “four-factor test” was explicitly rejected by the United States Supreme Court in Grubart, when the Supreme Court stated as follows:

Grubart and the city say that the Fifth Circuit has applied a somewhat similar “four-factor test”….

For better or worse, the case law has thus carved out the approximate shape of admiralty jurisdiction in a way that admiralty lawyers understand reasonably well. As against this approach, so familiar and relatively easy, the proposed four- or seven-factor test would be hard to apply, jettisoning relative predictability for the open-ended rough-and-tumble of factors, inviting complex argument in a trial court and a virtually inevitable appeal.
….

Reasons of practice, then, are as weighty as reasons of theory for rejecting the city’s call to adopt a multifactor test for admiralty jurisdiction for the benefit of land-based parties to a tort action.

Grubart, 513 U.S. at 543-48 (internal citations omitted).

It is therefore clear that the four-factor test that Dutch Tours proposes in its motion has been overruled by the United States Supreme Court. The Supreme Court also rejected the practice of generally characterizing incidents by stating: “to suggest that such hypergeneralization ought to be the rule would convert Sisson into a vehicle for eliminating admiralty jurisdiction.” Grubart, 513 U.S. at 542.

Accordingly, this Honorable Court should reject Dutch Tours’ Motion for Reconsideration because the arguments it raises are in direct conflict to the well settled principles set forth by the United States Supreme Court.

III. Dutch Tours’ alternative motion to certify appeal should also be denied because there is no substantial difference of opinion necessary for an interlocutory appeal.

As an alternative argument, Dutch Tours requests certification for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In order to obtain leave to proceed under § 1292(b), Dutch Tours must demonstrate that: (1) the case presents a “controlling question of law”; (2) there is a “substantial ground for difference of opinion”; and (3) the appeal will “materially advance the ultimate termination of the litigation.” See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1257 (11th Cir. 2004). Dutch Tours, however, did not even attempt to demonstrate any of these factors; and it would have fallen short had it tried.

First, there is no controlling question of law at issue. As the Eleventh Circuit noted, “[t]he term ‘question of law’ does not mean the application of settled law to fact.” Id. at 1258 (citation omitted) (emphasis added). Rather, “what the framers of § 1292(b) had in mind is more of an abstract legal issue or what might be called one of ‘pure’ law, matters the court of appeals ‘can decide quickly and cleanly without having to study the record.’” Id. (citation omitted). Where, however, determination of the appeal is “too fact-intensive,” the Eleventh Circuit will deny the petition. Id. Herein, the only issue Dutch Tours has is the manner in which this Honorable Court applied the well settled admiralty jurisdiction test to the facts of this case. That does not involve a controlling question of law.

Second, the Eleventh Circuit has repeatedly held that “a question of law as to which [the Eleventh Circuit is] in ‘complete and unequivocal’ agreement with the district court is not a proper one for § 1292(b) review.” Id. (citation omitted). Herein, there is no doubt that the Eleventh Circuit is in “complete and unequivocal” agreement with the test for admiralty jurisdiction. Again, Dutch Tours’ only point of contention is the manner in which the facts were applied to such test.

Finally, the last factor (whether the appeal would materially advance the ultimate termination of the litigation) means that the appeal “would serve to avoid a trial or otherwise substantially shorten the litigation.” Id. at 1259. An interlocutory appeal in this case would do neither because the Plaintiffs’ case against Royal Caribbean and RDVT would continue. An interlocutory appeal would therefore only further complicate matters and lengthen the litigation because this Honorable Court would either have to issue a stay or potentially try the case twice (once against Royal Caribbean and RDVT, and again against Dutch Tours alone).

All in all, it is clear that there are no grounds for reconsideration of this Honorable Court’s June 3, 2014 Order Rejecting Request to Vacate Rule B Attachments, and there are no grounds for certifying an interlocutory appeal as to such order. Accordingly, Plaintiffs respectfully request that the Court enter an order denying in its entirety Dutch Tours’ Motion for Reconsideration, or in the Alternative, Motion to Certify Appeal.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204
Attorneys for Plaintiffs

By: /s/ Jacqueline Garcell
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
JACQUELINE GARCELL
Florida Bar No. 104358


[1] To the extent Dutch Tours requests that this Court investigate the merits of Plaintiffs’ dispute at the outset of the case, that practice was explicitly rejected by the U.S. Supreme Court in Grubart, 513 U.S. at 537-38 (finding that the truth of jurisdictional allegations must not be decided with finality at the threshold of litigation because they are more appropriate at summary procedures).

[2] Dutch Tours claims that another case this Honorable Court relied on, Skeen v. Carnival Corp., 08CIV, 2009 WL 1117432 (S.D. Fla. Apr. 24, 2009), was solely against the cruise line. [D.E. 133, p. 6]. In fact, however, the case was against the cruise line (Carnival) and the shore excursion operator (Total Gusto).

[3] Dutch Tours also makes an issue of the Court in Balaschak finding that the allegations of negligent selection were not causally related to the plaintiff’s injuries. [D.E. 134, p. 5]. Dutch Tours ignores, however, that the Court in Balaschak found a sufficient causal relationship between the allegations that the excursion was promoted aboard the vessel, the plaintiff bought the excursion aboard the vessel, and the lack of warnings which were to be provided aboard the vessel – the same allegations that are at issue herein. Balaschak, 2009 WL 8659594 at *3.